By Bruce Henry, Principal Lawyer
Case Judgement Summary:
Background
Mr Komeng was employed by National Highways Ltd on an 18-month fixed-term contract from January 2020, working in an employee relations role. During his employment, he was not informed about or put forward for a Human Resources Business Partner (HRBP) development course that was offered to several permanent colleagues.
Mr Komeng brought claims in the Employment Tribunal including unfair dismissal, discrimination, and less favourable treatment under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. He argued that he had been treated less favourably than comparable permanent employees because he was not given access to the training opportunity.
The Tribunal dismissed his claims. He appealed to the Employment Appeal Tribunal (EAT) in relation to the fixed-term employee complaint and unfair dismissal.
Less favourable treatment under the 2002 Regulations
Regulation 3 of the Fixed-term Employees Regulations provides that fixed-term employees have the right not to be treated less favourably than comparable permanent employees, including in relation to training opportunities, unless such treatment is objectively justified.
A key issue in this case was whether a claimant must also demonstrate a separate “detriment” when alleging less favourable treatment in relation to training.
What the Employment Tribunal decided
The Tribunal accepted that:
- Mr Komeng had not been informed about the HRBP training course;
- Comparable permanent employees had been given access to that opportunity;
- His fixed-term status was a factor in the decision not to put him forward.
However, the Tribunal rejected the claim, finding that:
- He had not suffered a “detriment”, partly because he had not expressed an interest in the HRBP career path; and
- In any event, the employer’s actions were objectively justified.
The Tribunal found the decision was based on legitimate factors, including:
- The claimant’s lack of interest in the HRBP role;
- The short duration remaining on his fixed-term contract;
- The cost and time investment required for the training;
- The employer’s need to ensure appropriate use of public funds.
The claim was also found to be out of time.
What the EAT decided
The EAT dismissed the appeal overall but clarified an important legal point.
It held that:
- The Tribunal erred in law by requiring a separate finding of “detriment” in a claim about access to training under Regulation 3.
- Where a fixed-term employee is treated less favourably in relation to training, no additional detriment test is required.
However, despite that error, the EAT upheld the outcome because:
- The Tribunal was entitled to find that the treatment was objectively justified; and
- The claim would have failed on that basis in any event.
The EAT accepted that:
- Cost can form part of justification where it is not the sole reason;
- It was legitimate for the employer to consider whether investment in training was appropriate given the claimant was due to leave shortly after;
- The decision was based on a combination of factors, not simply his fixed-term status.
The appeal was therefore dismissed.
Comment
This case provides useful clarification for workers and representatives relying on the Fixed-term Employees Regulations.
Key points include:
- No separate detriment requirement:
Where a fixed-term worker is denied access to training opportunities, that may itself constitute less favourable treatment—there is no need to prove an additional detriment. - Justification remains a significant hurdle:
Even where less favourable treatment is established, employers may still avoid liability if they can show objective justification. - “Cost plus” reasoning is permitted:
Employers can rely partly on cost considerations, provided they form part of a broader, legitimate aim (such as effective workforce planning or appropriate use of resources). - Context matters:
Tribunals will closely examine factors such as the worker’s role, career intentions, and the expected duration of employment when assessing justification.
For claimants, the decision underlines the importance of clearly demonstrating both interest in the opportunity denied and why the employer’s justification is insufficient.
For employers, it highlights the need for transparent and fair decision-making, particularly when excluding fixed-term workers from development opportunities.
